McKinstry and Secretary, Department of Education, Skills and Employment

[2020] AATA 862

McKinstry and Secretary, Department of Education, Skills and Employment [2020] AATA 862 (17 April 2020)

Division:GENERAL DIVISION 

File Number:           2019/0608

Re: Kate McKinstry

APPLICANT

AndSecretary, Department of Education, Skills and Employment

RESPONDENT

DECISION

Tribunal:Member R West 

Date:17 April 2020  

Place:Melbourne

The decision under review is affirmed.

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Member

Catchwords

EDUCATION – remission of HECS-HELP debt application after census date – whether special circumstances – exacerbation of depressive illness – whether circumstances beyond the Applicant’s control – whether circumstances making full impact after the census date – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (C’th)
Higher Education Support Act 2003 (C’th)

Secondary Materials

Administration Guidelines 2012 made pursuant to s.238-10(1) of the Higher Education Support Act 2003

REASONS FOR DECISION

17 April 2020

1. This matter concerns an application for review of a decision of the Australian Catholic University (ACU) to refuse the remission of the Applicant’s HECS-HELP debt under s.36-20(1)(e)(ii) of the Higher Education Support Act 2003 (C’th) (Act).

   Background

2. The Applicant has undertaken the Master of Teaching (Secondary) course at ACU.  On or about 25 October 2016 the Applicant enrolled in the unit, Fostering Positive Behaviour – EDFD604 (Unit), to commence in Semester 2, 2017.

3. The commencement date for the Unit was 31 July 2017. The census date for the Unit was 31 August 2017.  The end date for the Unit was 19 November 2017. The Applicant failed to complete the course requirements and was credited with a Fail in the Unit.  On 8 March 2018 the Applicant applied for the re-credit of her HECS-HELP debt incurred for the Unit.

4. The Applicant’s initial application was cancelled by ACU.  She re-applied on 25 November 2018 and her revised application was rejected by ACU on 26 November 2018 (Decision).  On 21 December 2018 the Applicant requested a review of the Decision, and on 14 January 2019 the ACU affirmed the Decision (Review Decision).

5. The Applicant seeks a review of the Review Decision in these proceedings pursuant to s.212-1 of the Act.

   Hearing

6. A hearing was held on 17 March 2020.  The Applicant was self-represented and the Respondent was represented by Mr Holcombe, a solicitor, who appeared by telephone with the consent of the Applicant.

7. In conducting the review, the Tribunal has had regard to the documents produced by the Respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (C’th) (T Documents) and:

   a.the oral evidence of the Applicant;

   b.the statement of the Applicant, dated 31 January 2020 (Exhibit A1); and

   c.a bundle of clinical notes of Dr Daphne Smith, clinical psychologist (Exhibit A2).

   Legislation

8. The relevant section of the Act is s.36-20.  If it applies to the Applicant, ACU must pay to her an amount equal to her student contribution amount for the Unit and pay to the Commonwealth an amount equal to the HECS-HELP assistance to which she was entitled for the Unit. 

9. Section 36-20 applies to a person if:

   (a)  the person has been enrolled as a * Commonwealth supported student with the provider in a unit of study; and

   (b)  the unit would, if completed, form part of a * course of study undertaken with that provider or another higher education provider; and

   (c)  the person has not completed the requirements for the unit during the period during which the person undertook, or was to undertake, the unit; and

   (d)  the provider is satisfied that special circumstances apply to the person (see section 36-21); and

   (e)  the person applies in writing to that provider for either or both:

   (i)  the repayment of any amounts that the person paid in relation to his or her * student contribution amount for the unit; or

   (ii)  the remission of the person's * HECS-HELP debt in relation to the unit; and

   (f)  either:

   (i)  the application is made before the end of the application period under section 36-22; or

   (ii)  the provider waives the requirement that the application be made before the end of that period, on the ground that it would not be, or was not, possible for the application to be made before the end of that period.

10. In the Applicant’s case there is no dispute that the requirements of s.36-20(1) are satisfied save for paragraph (d).  The issue for determination on review is whether the Tribunal is satisfied that special circumstances apply to the Applicant.

11. The meaning of the term special circumstances is stipulated in s.36-21(1) which states:

    For the purposes of paragraph 36-20(1)(d), special circumstances apply to the person if and only if the higher education provider is satisfied that circumstances apply to the person that:

    (a)  are beyond the person's control; and

    (b)  do not make their full impact on the person until on or after the * census date for the unit of study; and

    (c)  make it impracticable for the person to complete the requirements for the unit during the period during which the person undertook, or was to undertake, the unit.

12. The meaning of these provisions is further clarified by Chapter 3 of the Administration Guidelines 2012 made by the Minister pursuant to s.238-10(1) of the Act (Guidelines), to which the Tribunal is required to have regard under s.36-21(2) of the Act.

    Applicant’s Evidence

13. The Applicant identified the special circumstances in her case as the exacerbation of her long-standing depressive illness which she said occurred after the census date and was contributed to by the financial hardship resulting from her employer’s decision to cease paying her wages for some periods.  She described it in her application to ACU as follows:[1]

    I have been under doctor’s care for depression which was exacerbated when my full-time job, at which I am a very minor investor, stopped paying my wages…it placed a very large strain on me, under already difficult circumstances.  I did not anticipate the emotional, physical & financial duress these circumstances exerted.

    [1] T9 at p.34.

14. The Applicant explained that she had worked as a manager at the Suzie Wong restaurant which was owned by her friend for some time prior to enrolling in the Unit.  She said that this involved her entered into a wage sacrifice arrangement whereby she sacrifice $200 per week from her wages in return for a share of the equity in the business. In or about May 2017 the business was struggling and she agreed to forego part of her wages in order to support its continued operation. Her employer confirmed in a letter that she had not been paid for 13 weeks in 2017.[2] She was asked why she had not sought alternative employment.  Her reply was that she felt loyalty to her friend and thought that they could turn the business around.  She also said that it would have been difficult for her to find another job.  She acknowledged that this was a bad decision and that her financial problems were partly of her own making. The business closed in September 2018.

    [2] T9 at p.36.

15. The Applicant was asked why she had not sought assistance from ACU’s student assistance program.  She said that it felt like a bridge too far and she was ashamed to admit that she needed help.

16. When asked why she had proceeded with the enrolment in the Unit when she knew she had a long-standing depressive illness which fluctuated and she would be under significant financial pressure she stated that she thought she would be able to complete the course because she had succeeded in other units previously.  She acknowledged that she had put pressure on herself as she was trying to make her life better by getting out of the hospitality industry.  She said that she felt she was running out of time to make the change given her age (53).

    Relevant Considerations

17. In assessing the Applicant’s claim of special circumstances, s.36-21(1) requires the Tribunal to consider three questions.

    Were the circumstances beyond the Applicant’s control?

18. The Guidelines[3] at paragraph 3.5.1 relevantly provide that a person’s circumstances are beyond that person’s control if a situation occurs which a reasonable person would consider is not due to the person’s action or inaction, either direct or indirect, for which the person is not responsible.

    [3] T18 at p.107.

19. Paragraph 3.5.2 adds that the situation must be unusual, uncommon or abnormal.

20. The medical evidence is clear that the Applicant suffered from an exacerbation of her underlying depressive condition in about August/September 2017.  Dr Borthwick, a clinical psychologist, reported on 20 September 2017[4] (three weeks after the census date) that the Applicant was experiencing an exacerbation of long-standing depressive symptomatology due to the death of her father the year before and significant financial stress.  In the Applicant‘s application to ACU for the re-credit of her units,[5] Dr Smith stated that the Applicant has been referred for management of a significant exacerbation of long-standing fluctuating depressive symptoms and that she is under significant financial strain due to lack of pay for the past six months of employment and that she was unable to study due to it.

    [4] Exhibit A2.

    [5] T9 at p.35.

21. It is also clear that the Applicant’s depressive illness was fluctuating in nature.  Dr Smith’s clinical notes record the variations in the Applicant’s mood, quoting her as saying:

    three really demanding weeks … rent was due no money – 1 May 2017

    a bit topsy turvy…aware that I am sleeping a lot – 23 May 2017

    feeling a bit like a mattress at the moment – 6 June 2017

    I feel more settled than I have for a long time …I feel like I am on track – 1 August 2017

22. Notwithstanding the Applicant’s attempt to attribute the exacerbation of her depressive symptoms in August/September 2017 to factors such as her age and a mid-life crisis, the Tribunal is satisfied that the exacerbation was due to the stress she experienced as a direct result of her financial position.  This is what the Applicant claimed in her application to ACU for the re-credit of her units[6] and is consistent with Dr Smith’s clinical notes.[7]

    [6] T9 at p.34.

    [7] Exhibit A2.

23. The Applicant’s financial situation was self-imposed.  She stated in her evidence that she made a conscious decision to accept an agreement to forego a significant part of her wages in order to try to keep the business afloat.  She tacitly, if not expressly, agreed to the withholding of her wages for 13 weeks.  She admitted she did not seek alternative employment out of loyalty to her employer, a personal friend.  She acknowledged in her evidence that this was a bad decision and her circumstances were, at least partly, of her own making.

24. Given her fluctuating depressive condition it could reasonably be expected that the financial stress caused by these decisions would exacerbate her condition. A reasonable person would not consider that the circumstances which resulted from those decisions were beyond the Applicant’s control.  The circumstances were a direct result of her decision to continue in the business under the arrangements in place at the time of her enrolment. 

25. The Tribunal accepts that it is unusual for a person to voluntarily forego their wages as the Applicant did, but the financial difficulties she experienced as a result could not reasonably be described as unusual, uncommon or abnormal.

    Did the circumstances make their full impact on the person on or after the census date for the Unit?

26. Dr Smith’s clinical notes, which cover the period from April to September 2017, show a fluctuation in the Applicant’s condition.  The exacerbation due to her financial position is not evident until after the census date.  The clinical notes for 1 August 2017, the day after she commenced the Unit, record that she felt more settled than I have for a long time… I feel like I am on track. On the basis of this evidence the Tribunal accepts that the circumstances did not make their full impact until after the census date.

    Did the circumstances make it impracticable for the Applicant to complete the Unit?

27. The Tribunal accepts that the medical evidence establishes that the Applicant’s condition had exacerbated to such an extent that she was unable to continue studying.  Although Dr Smith’s clinical notes of 19 September 2017 suggest that the Applicant withdrew from the Unit because she doesn’t have the time, Dr Smith’s report of 14 November 2017 states that the Applicant was unable to study due to the exacerbation of her long-standing fluctuating depressive symptoms.

    Conclusion

28. The requirements of paragraph 36-20(1)(d) of the Act are cumulative, requiring an affirmative answer to each of the three questions posed above.  While the Tribunal is satisfied that the Applicant’s circumstances made their full impact after the census date and made it impractical for her to complete the Unit, it is not satisfied that those circumstances were beyond the Applicant’s control as required by paragraph 36-21(1)(a).  Accordingly, the Tribunal is not satisfied that special circumstances applied to the Applicant and as a result the Tribunal finds that s.36-20 is not satisfied.

    Decision

29. The decision under review is affirmed.

30.     I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R West

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Associate

Dated: 17 April 2020

Date of hearing:	17 March 2020
Applicant:	Self-represented
Solicitors for the Respondent:	HWL EBSWORTH LAWYERS